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State v. Hess

Decided: December 14, 1984.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH C. HESS, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Hunterdon County.

Matthews and Cohen. The opinion of the court was delivered by Richard S. Cohen, J.A.D.

Cohen

[198 NJSuper Page 325] Defendant was indicted for sexual assault by touching the penis of an 11 year old boy, in violation of N.J.S.A. 2C:14-2(b). That section prohibits, as a second degree crime, sexual contact with a victim under 13 years old by a person at least four years older than the victim. Defendant moved for admission into the pretrial intervention ("PTI") program over the objection of the county prosecutor. The assignment judge denied the motion because of the prosecutor's objection. Defendant then entered a plea of guilty to an accusation charging him with violating N.J.S.A. 2C:24-4(a). That section prohibits, as a third degree crime, sexual conduct by a person who has assumed responsibility for the care of a child which would impair or debauch the morals of the child. As part of a plea agreement, the prosecutor

dismissed the indictment and made no sentence recommendation. The court sentenced defendant to 18 months' probation with a condition that he serve 30 days in the county jail. A motion for reconsideration of sentence was made and denied.

On appeal, defendant makes two arguments. The first is that the trial court erred in denying his motion for admission into the PTI program. The second is that his sentence was improper. For the reasons that follow, we affirm.

The trial court was correct in denying defendant's application for admission into PTI. Such applications may ordinarily be granted only with the consent of the county prosecutor. An application may be granted without such consent only if defendant can clearly and convincingly establish that the prosecutor's objection was a patent and gross abuse of discretion. State v. Dalglish, 86 N.J. 503, 508 (1981). Defendant's burden is a heavy one. Judicial review of the prosecutor's decision is narrowly limited and is available to check only the most egregious examples of injustice and unfairness. State v. Leonardis (II), 73 N.J. 360, 380-384 (1977).

Here, defendant has not shown that the prosecutor failed to consider all relevant factors, or that he considered inappropriate factors or that he committed a clear error of judgment. See State v. Bender, 80 N.J. 84, 93 (1979). The factors he considered most important were that defendant, a teacher and camp director, was said by an 11 year old boy to have disrobed before the boy and masturbated to climax, masturbated the boy to erection and unsuccessfully solicited the boy to engage with him in further sexual contact. State v. Litton, 155 N.J. Super. 207 (App.Div.1977). See State v. Humphreys, 89 N.J. 4, 12-13 (1982). Later, the boy said, defendant urged him not to reveal to his mother what had occurred. Defendant's version of the incident was less inculpatory, but the prosecutor was not obliged to choose it over the child's account. The prosecutor's decision to deny PTI was not, in the circumstances, a patent and gross abuse of his discretion and was properly treated by the court as requiring denial of PTI.

Defendant's second argument relates to his sentence. He says the trial court erred in imposing a term of imprisonment and ignoring the presumption of non-incarceration to which he was entitled. The State responds that a 30 day workhouse sentence that is imposed as a condition of probation is not a term of imprisonment but that, if it is, the presumption of non-incarceration was overcome in this case by the need for a jail sentence for the protection of the public.

A person convicted of a first or second degree crime must serve a term of imprisonment unless the court, having regard to the character and condition of the defendant, concludes that imprisonment would be a serious injustice which overrides the need to deter such conduct by others. N.J.S.A. 2C:44-1(d). A first offender convicted of less than a second degree crime will not receive a

N.J.S.A. 2C:44-1(e). The "subsection a" referred to in the quoted section is the list of nine aggravating circumstances which a court is obliged to consider in determining the appropriate sentence to impose. N.J.S.A. 2C:44-1(a). Subsection b is the list of thirteen mitigating circumstances which a sentencing court may properly consider. N.J.S.A. 2C:44-1(b).

A sentencing court may ordinarily incarcerate a person convicted of crime in one of two ways. The first is by a sentence of "imprisonment . . . for a specific term of years . . ." within the range established by N.J.S.A. ...


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